State v. Casares

- 150 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
State of Nebraska, appellee, v.
A drian M. Casares, appellant.
___ N.W.2d ___
Filed June 19, 2015. No. S-14-442.
1. Effectiveness of Counsel: Records: Appeal and Error. The resolution
of an ineffective assistance of counsel claim made on direct appeal turns
on the sufficiency of the record.
2. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant must raise on direct appeal any issue of trial counsel’s ineffective
performance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred.
4. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defense.
5. Effectiveness of Counsel: Records: Appeal and Error. A claim of
ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. The determining factor is whether the record
is sufficient to adequately review the question.
6. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffec-
tive assistance of counsel claim is raised in a direct appeal, the appellant
is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel.
7. ____: ____: ____. General allegations that trial counsel performed defi-
ciently or that trial counsel was ineffective are insufficient to raise an
ineffective assistance claim on direct appeal and thereby preserve the
issue for later review.
- 151 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
8. Effectiveness of Counsel: Records: Appeal and Error. An inef-
fective assistance of counsel claim made on direct appeal can be
found to be without merit if the record establishes that trial counsel’s
performance was not deficient or that the appellant could not estab-
lish prejudice.
9. Sentences: Evidence. A sentencing court has broad discretion as to
the source and type of evidence and information which may be used
in determining the kind and extent of the punishment to be imposed,
and evidence may be presented as to any matter that the court deems
relevant to the sentence.
10. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the amount of violence
involved in the commission of the crime.
11. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Affirmed.
Nancy K. Peterson for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Adrian M. Casares pled no contest to an amended informa-
tion charging one count of aiding and abetting second degree
murder. He was subsequently sentenced to no less than life
imprisonment or more than life imprisonment. In this direct
appeal, he alleges that his trial counsel was ineffective in vari-
ous respects and that his sentence was excessive. We affirm
his conviction and sentence.
- 152 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
I. FACTS
On December 30, 2012, at approximately 4 a.m., a news-
paper carrier found the body of Tyler Schoenrock on a gravel
road in rural Lancaster County, Nebraska. Schoenrock had
been shot twice in the back and once in the head. The
resulting investigation identified Casares and Miguel Castillo
as suspects.
Casares was originally charged with making terroristic
threats, a Class IV felony, and use of a firearm to com-
mit a felony, a Class IC felony.1 The information was later
amended to add charges of possession of a firearm by a pro-
hibited person, a Class ID felony, and accessory to a felony, a
Class III felony.2
The State later moved to file a second amended information,
in which it planned to charge a total of six crimes, includ-
ing first degree murder, a Class IA felony.3 But before that
information was filed, the parties negotiated a plea agreement.
Pursuant to the terms of that agreement, Casares entered a
plea of no contest to a second amended information charging
a single count of aiding and abetting second degree murder, a
Class IB felony.4
At the plea hearing, the court had an extended colloquy
with Casares discussing his rights, the nature of the charge,
and the possible penalty. The factual basis for the plea was
set forth in the written plea agreement, which characterized
the stated facts as “true and undisputed.” According to the
factual statement in the plea agreement, Casares, Castillo,
and Schoenrock were all involved with methamphetamine use
and distribution. On December 29, 2012, Casares confronted
Schoenrock at Schoenrock’s residence with a handgun and
1
See Neb. Rev. Stat. §§ 28-311.01 (Reissue 2008) and 28-1205(1)(c) (Cum.
Supp. 2014).
2
Neb. Rev. Stat. §§ 28-1206(3)(b) (Cum. Supp. 2014) and 28-204(2)(a)
(Reissue 2008).
3
See Neb. Rev. Stat. § 28-303 (Reissue 2008).
4
See Neb. Rev. Stat. §§ 28-206 and 28-304 (Reissue 2008).
- 153 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
accused Schoenrock of being a law enforcement “‘snitch.’”
Casares later left the residence, but in the early morning
hours of December 30, he and Castillo returned and picked
Schoenrock up in a vehicle which Casares drove. Casares had
the handgun with him, and a witness described the handgun
and the ammunition it contained with specificity. The hand-
gun and ammunition were eventually determined to have
been used to kill Schoenrock. The handgun was stolen, and
its owner informed police he noticed it was missing from
his truck on December 25, shortly after a visit from Castillo
and Casares.
Castillo was arrested soon after Schoenrock’s body was
discovered. He told police that after they picked Schoenrock
up, Casares drove the vehicle out of the city into the country.
Castillo stayed in the car while Casares and Schoenrock got
out. Castillo told authorities that Casares was responsible for
shooting Schoenrock at that location.
Casares was arrested on January 15, 2013, in Texas. At
the time of the arrest, he was accompanied by a woman. He
denied knowing Castillo well and denied being in Lincoln,
Nebraska, when Schoenrock was killed. The woman later told
police that she drove Castillo and Casares to her apartment
after the shooting and that she went to Omaha, Nebraska,
with them later in the day on December 30, 2012. On the way
to Omaha, Castillo and Casares discussed disposing of the
handgun, which was in a silver lockbox. The woman stated
that she eventually buried the lockbox in the backyard of an
Omaha residence, and eventually led police to it. Casares’
cell phone records showed he was in and around Lincoln on
December 29 and 30, and that the cell phone was frequently
used for calls and messaging, except from 3:05 a.m. to
4:08 a.m. on December 30, when it was turned off. Casares
informed the court at the time he entered his plea that he
had no disagreement with the factual basis set forth in the
plea agreement.
- 154 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
After accepting the plea, the court ordered a presentence
investigation (PSI). After reviewing the results of this inves-
tigation and conducting a hearing, the district court sentenced
Casares to a term of life-to-life imprisonment. Additional facts
relevant to the analysis are included therein.
II. ASSIGNMENTS OF ERROR
Casares assigns that his trial counsel was ineffective in (1)
failing to take the depositions of certain witnesses, (2) failing
to engage in effective advocacy at sentencing, (3) failing to
obtain a drug and alcohol evaluation of Casares, (4) failing
to arrange for Casares to review discovery, and (5) inducing
Casares to enter his plea by promising him he would receive a
specific sentence. In addition, Casares assigns that the sentence
of life-to-life imprisonment is excessive and was an abuse of
the sentencing court’s discretion.
III. STANDARD OF REVIEW
[1] The resolution of an ineffective assistance of coun-
sel claim made on direct appeal turns on the sufficiency of
the record.5
[2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.6
IV. ANALYSIS
1. Ineffective Assistance
of Counsel
[3] Casares is represented in this direct appeal by different
counsel than the counsel who represented him at the trial level.
When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counsel’s ineffective performance
5
See, State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014); State v. Watt,
285 Neb. 647, 832 N.W.2d 459 (2013).
6
See State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
- 155 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred.7
[4-7] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,8 the defendant must show
that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense.9 A claim of
ineffective assistance of counsel need not be dismissed merely
because it is made on direct appeal.10 The determining factor is
whether the record is sufficient to adequately review the ques-
tion.11 When the claim is raised in a direct appeal, the appellant
is not required to allege prejudice; however, an appellant must
make specific allegations of the conduct that he or she claims
constitutes deficient performance by trial counsel.12 General
allegations that trial counsel performed deficiently or that trial
counsel was ineffective are insufficient to raise an ineffective
assistance claim on direct appeal and thereby preserve the
issue for later review.13
[8] Appellate courts have generally reached ineffective
assist­ance of counsel claims on direct appeal only in those
instances where it was clear from the record that such claims
were without merit or in the rare case where trial counsel’s
error was so egregious and resulted in such a high level of
prejudice that no tactic or strategy could overcome the effect
of the error, which effect was a fundamentally unfair trial.14
7
State v. Filholm, supra note 5; State v. Ramirez, 284 Neb. 697, 823 N.W.2d
193 (2012).
8
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
9
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015); State v. Rocha,
286 Neb. 256, 836 N.W.2d 774 (2013).
10
See, State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013); State v.
Ramirez, supra note 7.
11
Id.
12
State v. Filholm, supra note 5.
13
Id.
14
State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).
- 156 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
An ineffective assistance of counsel claim made on direct
appeal can be found to be without merit if the record estab-
lishes that trial counsel’s performance was not deficient or that
the appellant could not establish prejudice.15
Casares raises five allegations of ineffective assistance of
counsel in this appeal. We address each in turn.
(a) Failure to Take Depositions
Casares claims that his trial counsel failed to take the depo-
sitions of certain witnesses, identified as Felicia Guevara,
Perla Cisneros, and Isaiah Nevins. He alleges that these three
witnesses were “critical” and that their testimony would have
provided facts sufficient to argue that Castillo was the shooter
and had lied to law enforcement.16 Specifically, Casares alleges
Guevara told law enforcement that prior to the murder of
Schoenrock, Castillo had told her he was going to “‘take care
of a rat.’” Guevara also authored a letter to the court that was
included in the PSI in which she stated Casares was innocent.
Casares alleges that Cisneros was Castillo’s girlfriend and
told Nevins that “‘we killed that fool.’”17 And Casares alleges
Nevins told investigators that he believed Castillo had killed
Schoenrock and that he had seen Castillo with a gun prior to
the murder. Casares also alleges that certain letters written by
Nevins indicate Casares was not guilty. In sum, Casares argues
that knowing these facts, counsel should have deposed these
witnesses to find out more information, and that the failure to
do so was deficient performance.
Because the record does not show whether these depositions
were taken or whether the letters exist, it is insufficient for
review of this claim on direct appeal, and we therefore do not
reach it.
15
See State v. Filholm, supra note 5.
16
Brief for appellant at 12.
17
Id. at 13.
 - 157 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
(b) Ineffective Advocacy
at Sentencing
Casares argues that his counsel was ineffective at sentenc-
ing because he (1) allowed various letters of support for
Casares to be included in the PSI, (2) did not object to certain
victim impact statements included in the PSI, and (3) did not
include certain depositions in the PSI.
(i) Letters of Support
The letters of support are a part of the record before us.
While certain of the letters express a belief that Casares was
innocent, the prevailing tone of the letters is that Casares
was a good person who did a bad thing. Casares argues they
should not have been included, because they were attempts to
demonstrate his innocence, which was no longer an issue at
sentencing. Having viewed the letters, we find counsel was not
deficient in allowing them to be included in the PSI.
(ii) Victim Impact Statements
The victim impact statements Casares complains about are
also part of the record before us. One was written by the sister
of Schoenrock’s girlfriend and one was written by a friend
of Schoenrock’s girlfriend. There are also impact statements
written by the mother of Schoenrock’s infant son in her own
behalf and on behalf of the child.
According to Neb. Rev. Stat. § 29-2261(3) (Cum. Supp.
2014), the presentence investigation report should include
any written statements submitted to either the county attorney
or the probation officer by a victim. “Victim” in this context
is statutorily defined in the case of a homicide as the “near-
est surviving relative under the law as provided by section
30-2303.”18 Neb. Rev. Stat. § 30-2303 (Reissue 2008) provides
that the nearest surviving relative is issue of the decedent,
followed by the decedent’s parents. Victims who meet this
18
Neb. Rev. Stat. § 29-119(2)(b) (Cum. Supp. 2014). See § 29-2261(3)
and (4).
- 158 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
definition have the right to make a written or oral impact
statement and have it be included in the PSI.19
[9] Based on these statutes, only Schoenrock’s infant son,
and perhaps Schoenrock’s parents, had the statutory right to
have a victim impact statement included in the PSI. But the
relevant statutes also state that a PSI is to include “any other
matters that the probation officer deems relevant or the court
directs to be included.”20 Further, a sentencing court has broad
discretion as to the source and type of evidence and informa-
tion which may be used in determining the kind and extent of
the punishment to be imposed, and evidence may be presented
as to any matter that the court deems relevant to the sen-
tence.21 Thus, although the victim impact statements to which
Casares now objects were not required to be included in the
PSI, they were not necessarily excludable. Because of this,
and the district court’s broad discretion to give the statements
any weight they were due, we conclude that the files and
records affirmatively show that trial counsel was not deficient
in failing to object to the identified victim impact statements.
Moreover, inclusion of the statements could not have resulted
in prejudice to Casares under the Strickland test, because there
is no reasonable probability that his sentence would have been
different if these impact statements had been excluded from
the PSI.
(iii) Depositions
Casares claims that his trial counsel failed to include in the
PSI copies of the depositions that were taken of Castillo and
three others. He alleges that inclusion of these depositions
would have demonstrated how the witnesses’ stories changed
over time. He alleges this information would have further
19
Neb. Rev. Stat. § 81-1848(1)(d)(iv) (Reissue 2014). See Neb. Const. art. I,
§ 28.
20
§ 29-2261(3).
21
State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).
- 159 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
challenged the credibility of Castillo’s claim that Casares was
the shooter.
But the credibility of Castillo’s story was not an issue at
sentencing. The factual basis of Casares’ no contest plea was
that he drove Schoenrock to a rural area and shot him, while
Castillo waited in the car. Casares expressly told the court at
the time the plea was entered that he had “no disagreement”
with this factual basis. Moreover, the PSI was over 2,000
pages long, and the court acknowledged at sentencing that
“virtually everyone knowing any — having any knowledge
about what happened prior to, at the time of, and shortly after
the killing . . . lied to one degree or another to those investi-
gating the murder.” Additional examples of inconsistent state-
ments or lies would not, with any reasonable likelihood, have
convinced the sentencing court to impose a different sentence.
This allegation is without merit.
(c) Drug and Alcohol Evaluation
Casares alleges that his trial counsel was ineffective in fail-
ing to arrange for him to have a separate drug and alcohol
evaluation and then include the results of that evaluation in the
PSI. He alleges such an evaluation would have provided more
detail about his life and was “one tool among many” that could
have humanized Casares before the court.22
As noted, the PSI was extensive. It includes sections regard-
ing Casares’ background, criminal history, family life and
relationships, use of alcohol and drugs, and prior treatment for
alcohol and drugs, as well as the circumstances of the offense.
Any additional information obtained by a drug and alcohol
evaluation would have been largely cumulative. There is no
reasonable probability that the sentence would have been dif-
ferent if a drug and alcohol evaluation had been included in the
PSI. This allegation is without merit.
22
Brief for appellant at 20.
- 160 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
(d) Failure to Show Casares
Discovery Materials
Casares claims his trial counsel did not arrange for him to
review materials obtained during discovery before he entered
his plea. He alleges that as a result, he was unable to make an
informed decision about the resolution of his case. The record
does not show whether Casares’ counsel reviewed discovery
with him, and the record is therefore insufficient to review this
claim on direct appeal.
(e) Promise of Specific Sentence
Casares claims that his trial counsel promised him he would
receive a sentence of 30 to 60 years’ imprisonment if he
entered his plea of no contest. But the files and records of
the case affirmatively show that this allegation of deficient
performance has no merit. At the plea hearing, Casares was
specifically asked whether “any promises or representations”
had been made to him “to get [him] to enter [his] plea,” and
he responded “[n]o.” He was also specifically asked whether
“anyone made any promises or representations” to him as to
what the “sentence will be” and again responded “[n]o.” He
also was asked whether any inducement or promise was made
to get him to enter his plea, and he again responded “[n]o.”
This record affirmatively refutes Casares’ claim that he was
promised a sentence of 30 to 60 years’ imprisonment. This
claim of ineffective assistance of counsel is without merit.
2. Excessive Sentence
Casares was sentenced to a minimum term of life imprison-
ment and a maximum term of life imprisonment for aiding
and abetting second degree murder. He alleges the sentence
was excessive.
[10,11] Casares’ sentence was within the statutory limits,23
and an appellate court will not disturb a sentence imposed
23
See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014) and §§ 28-206 and
28-304.
- 161 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
within the statutory limits absent an abuse of discretion by the
trial court.24 When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature
of the offense, and (8) the amount of violence involved in the
commission of the crime.25 Where a sentence imposed within
the statutory limits is alleged on appeal to be excessive, the
appellate court must determine whether the sentencing court
abused its discretion in considering and applying the relevant
factors as well as any applicable legal principles in determin-
ing the sentence to be imposed.26
Casares argues his life sentence was excessive primarily
because Castillo received a sentence of 55 to 70 years. In
doing so, however, Casares acknowledges that Castillo pled
to one count of aiding and abetting the use of a firearm dur-
ing the commission of a felony and one count of accessory to
a felony. He also acknowledges that the prosecutor submitted
a letter urging the court when sentencing Castillo to consider
that Castillo “‘deserves consideration for his cooperation and
willingness to testify.’”27 It is thus apparent from Casares’
own argument that Castillo was convicted of a different crime
and that Castillo, but not Casares, chose to cooperate with the
investigation. Both of these are valid reasons for the disparity
in the sentences imposed on the two men.
Moreover, Casares’ criminal history and background, as
demonstrated in the PSI, supports the life-to-life sentence.
Prior to imposing the sentence, the trial court reviewed the
entire PSI and considered Casares’ circumstances as a whole.
24
State v. McGuire, supra note 6.
25
Id.; State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
26
State v. Dixon, supra note 25; State v. Erickson, 281 Neb. 31, 793 N.W.2d
155 (2011).
27
Brief for appellant at 29.
- 162 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. CASARES
Cite as 291 Neb. 150
In concluding that life-to-life imprisonment was an appropri-
ate sentence, it noted that Schoenrock’s killing was “inten-
tional and cold blooded” and that Casares was a “dangerous
person who needs to be kept off the streets and away from the
public as long as possible.” The record demonstrates that the
sentence imposed was not an abuse of discretion.
V. CONCLUSION
We do not reach Casares’ claims that his trial counsel was
ineffective in failing to take certain depositions and in failing
to review discovery materials with him, because the record
on direct appeal is insufficient for us to do so. We conclude
that his remaining claims of ineffective assistance of coun-
sel are without merit and that his sentence is not excessive.
Accordingly, we affirm the conviction and sentence.
A ffirmed.